Prosecutors Eye WikiLeaks Charges

WASHINGTON—Pentagon lawyers believe that online whistleblower group WikiLeaks acted illegally in disclosing thousands of classified Afghanistan war reports and other material, and federal prosecutors are exploring possible criminal charges, officials familiar with the matter said.

A joint investigation by the Army and the Federal Bureau of Investigation is still in its early stages and it is unclear what course the Department of Justice will decide to take, according to a U.S. law-enforcement official.

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WikiLeaks founder Julian Assange in Stockholm this month. In July, the whistleblower group disclosed thousands of classified war documents.
Reuters

He said WikiLeaks founder Julian Assange had not been identified by the FBI as a target of the probe.

WikiLeaks in late July posted on its website some 76,000 classified military documents, the largest such disclosure since the release of the Pentagon Papers in 1971. It has promised to publish another 15,000 documents from the cache it obtained. The disclosure infuriated the Pentagon, which warned that the release could endanger allies in Afghanistan and undercut the war effort.

Several officials said the Defense and Justice departments were now exploring legal options for prosecuting Mr. Assange and others involved on grounds they encouraged the theft of government property.

Bringing a case against WikiLeaks would be controversial and complicated, and would expose the Obama administration to criticism for pursuing not just government leakers, but organizations that disseminate their information.

The increasingly confrontational tone could be part of Pentagon efforts to dissuade WikiLeaks from posting online the yet-to-be-published documents in its possession.

"It is the view of the Department of Defense that WikiLeaks obtained this material in circumstances that constitute a violation of United States law, and that as long as WikiLeaks holds this material, the violation of the law is ongoing," Defense Department General Counsel Jeh Charles Johnson wrote in a letter this week to a WikiLeaks lawyer.

The letter did not spell out what those circumstances were.

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Pfc. Bradley Manning
Associated Press

People familiar with the matter said investigators and government lawyers were looking at whether WikiLeaks pressed or encouraged army intelligence analyst Pfc. Bradley Manning to leak the Afghan war logs after the army private provided the group with a classified Iraq video.

Such a finding could increase the chances that prosecutors will pursue charges against WikiLeaks, legal experts said.

Steven Aftergood, head of the project on government secrecy at the Federation of American Scientists, said U.S. law gives prosecutors a number of tools they could use to prosecute WikiLeaks, such as alleging the group was an accessory to a crime or had unlawfully taken possession of stolen property. If WikiLeaks actively encouraged the transfer of classified documents, the government could allege the group was part of a conspiracy, he said.

At issue is whether WikiLeaks should be afforded the same legal protections as a traditional media outlet.

Legal experts said the government may view WikiLeaks differently because of the way it gathers and publishes information. Its website actively solicits classified material and promises leaking is "safe, easy and protected by law."

When established news organizations obtain classified information, they rarely publish it wholesale or without first consulting the government to authenticate the information and to ensure it doesn't compromise national security. WikiLeaks' model eschews that step.

"If WikiLeaks thought it would make the last move and the government would not respond, they may be mistaken," said Mr. Aftergood. "But it would be a terrible new precedent if these legal options were actually employed against a publisher, even a disreputable one. Once such measures were used against WikiLeaks, it would only be a matter of time until they are used against other media outlets and individuals."

Pentagon Press Secretary Geoff Morrell declined to comment on the investigation but said, "We believe at a minimum that WikiLeaks has behaved in a reckless and irresponsible manner."

The Army unit conducting the investigation and the FBI declined to comment.

The lawyer working with WikiLeaks, Timothy Matusheski, said he had been told by a member of the Army Criminal Investigative Division unit investigating the case that Mr. Assange—an Australian national —"was not a subject or target of any investigation."

The U.S. law-enforcement official said that Mr. Assange was not a target, but Mr. Johnson's letter may signal a shift, at least in terms of the Pentagon's thinking, Mr. Matusheski said. "They accuse him of breaking the law," he said of Mr. Assange. "But they haven't said what law."

Pfc. Manning, a 22-year-old private, worked in intelligence operations in Baghdad. He was supposed to be examining intelligence relevant to Iraq, but defense officials said Pfc. Manning used his "Top Secret/SCI" clearance to tap into documents around the world.

Pfc. Manning was charged by the military in July with illegally taking secret State Department files and disseminating the classified video, later released by WikiLeaks, showing a U.S. military helicopter firing on a group of people in Baghdad. Two Reuters journalists and seven other people were killed in the 2007 incident.

Going after WikiLeaks or Mr. Assange personally would be complicated. Not only is Mr. Assange not an American, but "I don't know WikiLeaks has a presence in the United States except for a website," Mr. Matusheski said.

The classified documents cover the Afghan war from 2004 through 2009. The Pentagon this week rebuffed a WikiLeaks request for help reviewing the remaining documents, demanding that the group instead return all of the logs to the U.S. government.

The Pentagon said the 15,000 additional documents, like the initial batch, contained the names of Afghans who have helped the U.S. war effort and who could be targeted by the Taliban if their identities were made public. But officials have played down the impact of the leak on military strategy, saying they revealed little new.

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